03/02/2017


Case Caption

Case No.Topics and IssuesAuthorDecided
Carter v. Durden 103127Unauthorized practice of law. Municipal court had jurisdiction over third-party complaint for fraud as there was no claim or finding made regarding the unauthorized practice of law.Blackmon 3/2/2017
State v. Romanko 104158Anders; resentencing; scope of appeal; wholly frivolous - In appeal from resentencing after case was remanded for the trial court to consider whether consecutive sentences are appropriate under R.C. 2929.14(C)(4) and, if so, to make the findings required by the statute, no issue of arguable merit was found following consideration of the potential arguments identified by appointed counsel, the arguments raised in defendant's pro se brief and an independent review of the record of defendant's resentencing. Appeal from a resentencing following a remand from a successful appeal is limited to those issues that arise from the resentencing. There was no arguably meritorious claim that trial court failed to make the findings required for the imposition of consecutive sentences or that the record clearly and convincingly did not support the trial court's findings under R.C. 2929.14(C)(4). Other issues raised by defendant in pro se brief did not arise from the resentencing and were, therefore, outside the scope of the appeal.Gallagher 3/2/2017
State v. Stewart 104402R.C. 2929.11; R.C. 2929.12; R.C. 2929.14(C)(4); contrary to law; statutory factors; consecutive sentences; findings. Trial court did not err when it sentenced appellant to a prison term after considering R.C. 2929.11 and 2929.12. Trial court did not err when it sentenced appellant to consecutive prison terms after making requisite statutory findings on the record pursuant to R.C. 2929.14(C)(4).Stewart 3/2/2017
State v. Eddy 104417Felonious assault; drug trafficking; drug possession; sufficiency of the evidence; relevant evidence; motion for mistrial; lay witness testimony; Crim.R. 33; Evid.R. 701; Evid.R. 704; ultimate issue of fact. The state presented sufficient evidence to convict defendant beyond a reasonable doubt. Evidence presented by the state regarding a gun, drugs, and drug-related items that were found in the vehicle that defendant was in when he was arrested was relevant to counter defendant's theory of defense that he presented at trial. The trial court did not abuse its discretion when it denied defendant's motion for mistrial when defendant was untimely in moving for a mistrial and invited the error on which he based his motion.Boyle 3/2/2017
State v. Alvelo 104422Crim.R. 11; Alford plea; acceptance and retention of guilty pleas; Crim.R. 32.1; postsentence motion to withdraw guilty plea; appellate jurisdiction - Trial court did not err in retaining defendant's guilty pleas based on defendant's assertions, after the trial court accepted his guilty pleas, that he was "not a robber" and was only collecting a debt and that no firearm was involved in the incident. Defendant did not enter an Alford plea. Defendant's post-plea comments did not constitute "protestations of innocence" and were not contemporaneously made with the entry of his guilty pleas. Furthermore, the record demonstrated a factual basis existed for defendant's guilty pleas. Court lacked appellate jurisdiction to consider whether trial court erred in denying defendant's Crim.R. 32.1 postsentence motion to withdraw guilty pleas where defendant did not appeal from that order. Remanded for resentencing on breaking and entering and having weapons while under disability counts upon which sentences were imposed in the sentencing journal entry that were not orally imposed at the sentencing hearing and for the entry of a nunc pro tunc order to correct the amount of restitution ordered in the sentencing journal entry to that imposed at the sentencing hearing.Gallagher 3/2/2017
State v. Herring 104441Speedy trial; Evid.R. 404(B); Evid.R. 403; other acts evidence; Confrontation Clause; sufficiency and manifest weight of the evidence; merger; allied offenses; consecutive sentences. The convictions for aggravated burglary, two counts of robbery against separate victims, disrupting public service, grand theft, domestic violence, and endangering a child are not against the weight of the evidence. There was no error with the introduction of defendant's recorded conversation seeking to intimidate the victim at trial under Evid.R. 404(B); the evidence was introduced for a legitimate purpose other than to show defendant's propensity to commit the crimes. The trial court did not need to consider the terms of a rejected plea offer in considering the proportionality for the purposes of consecutive sentences.Gallagher 3/2/2017
State v. Nance 104467Consecutive sentences; R.C. 2929.14(C)(4); R.C. 2953.08; R.C. 2929.11; R.C. 2929.12; contrary to law. The trial court did not err by imposing consecutive sentences and appellant's sentence is not contrary to law.Celebrezze 3/2/2017
State v. Edmonds 104528Ineffective Assistance of Counsel; Motion to Suppress; Sufficiency of Evidence; Manifest Weight of Evidence; Involuntary Manslaughter; Corrupting Another With Drugs. Trial counsel was not ineffective for not filing a motion to suppress where defendant's warrantless arrest was made with probable cause, the subsequent search of the defendant's mother's house was with permission, and the search of the defendant at the jail was a constitutionally permitted custodial search; defendant's convictions for involuntary manslaughter and corrupting another with drugs were supported by sufficient evidence and not against the manifest weight of the evidence.Keough 3/2/2017
Fried v. Abraitis 104650Complaint for Declaratory Judgment; Cross-claim; Final, Appealable Order; Civ.R. 54(B). Where the trial court ruled on the complaint for declaratory judgment but did not resolve the cross-claim for attorney fees and costs, and did not include the language of Civ.R. 54(B) that there was no just cause for delay, the judgment was not a final, appealable order, and appellate court had no jurisdiction to consider the appeal.Keough 3/2/2017
Czalkiewicz v. Czalkiewicz 104654Spousal support; divorce decree; contempt; child support; termination; cohabitation; definition; competent, credible evidence; abuse of discretion. Trial court abused its discretion in finding appellant in contempt and failing to terminate his spousal support obligation due to appellee's "cohabitation" as defined under the terms of the divorce decree. The decision to terminate child support did not terminate the spousal support obligation. However, the trial court's determination against cohabitation was not supported by competent, credible evidence in the record, and the totality of evidence in the record demonstrated cohabitation.Gallagher 3/2/2017
Holt v. Cuyahoga Cty. 104732Property taxes; late payment; penalty assessment; declaratory judgment action; subject matter jurisdiction. Judgment reversed and the matter is remanded with instructions for the trial court to dismiss for lack of jurisdiction. Appellant-taxpayer untimely paid his property tax bill and was assessed a penalty. Appellant sought to have the Cleveland Municipal Court remove the penalty assessed by the defendants. The municipal court lacked jurisdiction to entertain Holt's declaratory judgment action. Nothing in R.C. 1901.18 gives the Cleveland Municipal Court the power to render declaratory judgments prohibiting the county auditor from assessing tax payers the late payment of property tax bills as provided in R.C. 323.121. Rather than follow the statutory procedures set forth in R.C. Chapter 5717, appellant attempted to bypass the county board of revision and the board of tax appeals by initiating his declaratory judgment action in Cleveland Municipal Court.Kilbane 3/2/2017
Daher v. Cuyahoga Cty. Community College Dist. 104836Motion to quash subpoena; motion for a protective order; grand jury materials; R.C. 2939.11; in camera inspection; malicious prosecution; R.C. 2505.02; discovery order. The trial court's order requiring appellant to produce grand jury materials to the trial court for an in camera inspection does not constitute a final appealable order under R.C. 2505.02. Accordingly, we lack jurisdiction to entertain the merits of the appeal.Celebrezze 3/2/2017
State v. Norman 104936Conceded error; restitution; R.C. 2929.18; R.C. 2929.28; R.C. 2929.01; economic loss; evidentiary hearing. Because appellant disputed the amount of restitution, the trial court abused its discretion by ordering appellant to pay restitution without holding a hearing to determine the appropriate amount of restitution.Celebrezze 3/2/2017
Mallett v. Cleveland Civ. Serv. Comm. 104799Mandamus; law of the case; reinstatement; and scope of the remand. Relator through a law of the case mandamus action sought reinstatement with full back pay because this court ordered reversal of an administrative appeal upholding his termination. This court declined to issue the writ because this court's reversal and remand order did not preclude other proceedings. A clear, legal right enforceable in mandamus is not created by inference.Keough 3/1/2017